WELLES, Justice. Cheney agt. Garbutt. The defendant moves to set aside the execution against his person upon the ground that the complaint contained no allegation which would authorize his being charged in execution upon the judgment; that as there was nothing stated in the complaint which he could deny, or answer, so as to put the plaintiff to a trial, and as the order for his arrest was made on an ex parte application, he has had no opportunity of controverting the allegation of fraud. The 4th and 5th subdivisions of § 179 of the Code authorize the arrest of the defendant in cases where he has been guilty of fraud in contracting the debt, or incurring the obligation for which the action is brought, &c., or where the defendant has removed or disposed of his property, or is about to do so with intent to defraud his creditors. Upon both these grounds, the order in this case was made. By § 288, an execution against the person of the defendant may be issued in the cases mentioned in sections 179 and 181. By § 183, the order for the arrest may be made to accompany the summons, or at any time afterwards, before judgment. By §186, the defendant, at any time before execution, shall be discharged from the arrest either upon giving bail, or upon depositing the amount mentioned in the order of arrest. The bail mentioned is by 187, to be an undertaking, &c. to the effect that the defendant shall at all times render himself amenable to the process of the court, during the pendency of the action, and to such as may be issued to enforce the judgment therein, &c. By § 204, a defendant arrested may, at any time before the justification of bail, apply, on motion, to vacate the order of arrest, or to reduce the amount of bail. son. Looking at all these provisions, I am satisfied that the plaintiff was regular in issuing the execution against the defendant's perThere is no provision requiring the complaint to contain the allegations, which authorize the defendant's arrest or imprisonment. By § 183, the order for the arrest may be made at any time before judgment. The occasion for the arrest may arise under § 179. sub. 5, and I think also under sub. 1 of the same Cheney agt. Garbutt. section, the day before the judgment is entered. In such cases, order of arrest the complaint may have been served before the was applied for, and then, according to the argument of the defendant's counsel, it would be impossible to change him in execution at all, because the fact which was the foundation for it, was not, and could not be alleged in the complaint, which was prepared and served before there was any occasion for the arrest or imprisonment. If the position of the defendant's counsel be correct, that, as a fundamental rule, the complaint should show facts sufficient to authorize the imprisonment of the defendant, in order to change him in execution, so that an issue may be formed upon the existence of such facts, such rule, from its nature, should apply to all cases. But it is seen that such a rule can not be made to apply to the case of an order made after the complaint is served. This, I think, shows that the legislature did not contemplate any different form of the complaint between a bailable and nonbailable action, unless the nature of the action required the difference. In most of the cases where the defendant may be arrested under § 179, the ground of arrest is something wholly aside from and independent of the cause of action. Section 142 of the Code, which prescribes what the complaint shall contain, requires a statement of the facts constituting the cause of action, &c., and a demand of the relief to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated. The kind of execution is not what is intended by the relief to be demanded in the complaint. The only imaginable use of introducing the facts which are the grounds of the defendant's arrest, into the complaint, where such facts are extraneous to those constituting the cause of action, would be to allow the defendant the opportunity of taking issue upon them, and of trying it as other issues, made by the pleadings, are tried. I think the legislature have provided a different mode of trying the question, and that is, by an application to vacate the order of arrest under § 204. There may be objections to this mode of trial, and yet it is not without its advantages to the defendant. Williams agt. Hayes. If the order is granted upon insufficient affidavits, the judge upon ow. 470-DISAPPROVED, 8 How. 374. See 5 Id. 1. 68, 70. SUPREME COURT. WILLIAMS agt. HAYES. The Code not only abolishes the distinction between legal and equitable remedies, but also establishes an uniform course of proceedings in all cases. Therefore neither the rules by which the sufficiency or insufficiency of pleadings in the common law courts, nor those which were applicable to pleadings in courts of equitable jurisdiction, can be adopted as a sure guide. The complaint is to contain a statement of the facts constituting the cause of action. The answer, besides a denial of the allegations of the complaint, may contain a statement of any new matter constituting a defence. The reply, in addition to a denial of the statements in the answer, may contain allegations of new matter, in avoidance of the answer (Code, § 142, 149, 153). Whatever statements may be found in either of these pleadings beyond this, are redundant and irrelevant. And this too, whatever the nature of the action, whether under the system, now abolished, it would have been a case of legal or equitable cognizance. The criterion is, whether the allegation in the pleading can be made the subject of a material issue. That is, the statement of such facts as constitute a cause of action, or a defence, or in case of a reply, such facts as will avoid a defence. Not a statement of the evidence, or, which is the same thing, facts which constitute evidence of an essential fact in the case. (The doctrine in the case of Knowles agt. Gee, 4 How. Pr. R. 317, concurred in. See also Shaw agt. James, id. 119; Glenny agt. Hitchins, id. 98; Russell agt. Clapp, id. 347; McMurray agt. Gifford, ante page 14.) It is the right of the adverse party to have the matter improperly inserted in the pleading, removed. so that the record, when complete shall present nothing but the issuable facts in the case. (The case of Hynds agt. Griswold, 4 How. Pr. R. 69, explained, and modified. The case of Carpenter agt. West, ante page 53, concurred in.) Williams agt. Hayes. Rensselaer Special Term, January 1851. Motion to strike out irrelevant and redundant matter. The action was brought to restrain the defendant from foreclosing a mortgage executed by the plaintiff and his wife to one Boughton, and to have the same cancelled. The complaint states that on the 7th of April 1838, the plaintiff and his wife mortgaged certain premises to Boughton to secure the payment of $250; that Boughton died in 1846, and that, before his death, the mortgage had been fully paid; that after the death of Boughton the mortgage came into the possession of the defendant, who claims to be the owner and assignee thereof, and is seeking to foreclose the same. The complaint then proceeds to state that Boughton had, in his life time publicly stated that the plaintiff had paid up the mortgage, and that he was indebted to the plaintiff; that the only reason why the mortgage had not been legally discharged was, that the parties, being ignorant of the law, had not deemed it necessary; that after the mortgage had come into the possession of the defendant, he had sold it to one Greenman, representing that there was still due thereon $54; that Greenman having ascertained that the mortgage had been paid and that its payment could be proved, sued the defendant to recover back the amount paid for the mortgage, and before the trial the defendant refunded to Greenman the amount paid by him, and received the mortgage back; that after this the defendant had offered to sell and deliver the mortgage to the plaintiff for $30, which the plaintiff, to avoid litigation, had agreed to pay, upon condition that the defendant would execute an instrument whereby it might be legally discharged, which the defendant refused to do; that before the death of Boughton he and the plaintiff had, for six years or more, dealt largely together and had not settled; that they were about settling when Boughton died; that plaintiff has but little property, and if the defendant is permitted to enforce the mortgage, the plaintiff will be left nearly, if not entirely destitute. All these statements, subsequent to the allegation that the defendant is seeking to foreclose the mortgage, the defendant moved to strike out as redundant or irrelevant. Williams agt. Hayes. E. R. PECK, for Plaintiff. BINGHAM & MCCLELLAN, for Defendant. HARRIS, Justice. A prominent object of the reform instituted by the Code was "to simplify and abridge pleadings," to substitute for the unmeaning forms, and prolix statements with which pleadings, both at law and in equity, had been incumbered, a simple statement of the facts which constitute the cause of action, or the grounds of defence, in such a manner as to present to the court the precise points in dispute, and when the controversy is ended, to preserve a record of the precise matters determined. Hence it is specifically required, in respect to all pleadings, that the matter to be alleged shall be stated in "ordinary and concise language." The complaint is to contain "a statement of the facts constituting the cause of action." The answer, besides a denial of the allegations of the complaint, may contain a statement of any new matter constituting a defence. In like manner the reply, in addition to a denial of the statements in the answer, may contain allegations of new matter, in avoidance of the answer (Code, § 142, 149, 153). Whatever statements may be found in either of these pleadings beyond this, are redundant or irrelevant; and this, too, whatever the nature of the action; whether under the system, now abolished, it would have been a case of legal or equitable cognizance. It was the avowed object of the legislature, in adopting the Code, not only to abolish the distinction between legal and equitable remedies, but to establish an uniform course of proceeding in all cases (see preamble to the Code). Under such a system, neither the rules by which the sufficiency or insufficiency of pleadings in the common law courts, nor those which were applicable to pleadings in courts of equitable jurisdiction, can be adopted as a sure guide. The principle by which questions of this description are to be determined under the present system, has been exceedingly well stated by Mr. Justice SELDEN, in Knowles vs. Gee (4 Howard, 317). The facts which pleadings under the Code are to contain are, he says, "issuable facts-facts essential to the cause of action, or defence, |